it is therefore ADJUDGED ORDERED and DECREED as follows: The Respondent [UVA] shall complete its supply of requested documents no later than 90 days after the date of this order and will supply them in electronic form.

As I understand the order, information claimed to be Exempt Information will be filed under seal and, after examination of the Exempt Information, the Parties have an opportunity for in camera review to determine their final status i.e. upholding the exemption or refusing the exemption. Any documents where the exemption was refused would no longer be under seal.

In short, the University was forced to part ways from supporting the PFAW/ACLU/AAAS/AAUP demands and Mann’s interests, and start working to make itself look less bad to a court. Beginning by agreeing to let us see it all — ‘it’ being the records as described in the AG’s CID — and begin the process of identifying what within that ‘all’ it was going to fight over and why. See attached.

So we get it all, and electronically, including the coded material oddly delivered in printed form when mailed to us last week.*

They must isolate and declare what they declare exempt and we’ll present what of that that’s withheld, that we want released, to the judge to decide whether it is rightly exempt under a specific FOIA exemption. What isn’t stamped is ours at that time w/o further fight. It is the University’s burden to argue that what they’ve claimed an exemption for must not be released, i.e., be returned to them.

*On Friday, with a hearing looming, they turned over a stack of records, apparently hurriedly produced, after we filed suit on Monday, with enough having become enough. Although a few decent items slipped through, inter alia affirming that ClimateGate appeared on its face to be, at least a couple of respects, they clearly turned over as much chaff as they could scrape together from the review they had largely been avoiding undertaking in the first place (pages and pages of ads in email threads, and the like) to show volume if not actual cooperation. But that era is over.

48 Comments

The ‘in camera’ private review and ‘filing under seal’ seems to be an adroit way to address the expressed concerns that ‘intellectual (or academic) freedom of speech’ is somehow under attack by jackbooted thugs (or whatever florid pejoratives were deployed), while fulfilling FOI…

Seems hard to claim that the expensive (“privately funded”)lawyer team delivered very much for their client UVA…

Sounds like they don’t get to (legally) hold anything back. The only consolation to UVA is that the dicey documents they deem to be exempt, must only be shared while the judge in the room with each side’s lawyers.

I’ve added a couple of sentences to clarify a point that not everyone understood, After 90 days and an examination period, the validity of the exemption claims will be negotiated and, if necessary, argued. Any documents not determined to be exempt would not be under seal.

Actually, I think that UVA must provide ‘the whole enchilada’ (in electronic format) to ATI and then attempt to make claims to the judge about which ones cannot be released (because they are exempt from disclosure). I think ATI will temporarily have the claimed documents (“under seal”) to be able to challenge the ones they think are not really exempt.

Any release of sealed documents by prosecution would risk contempt of court; similarly, selective non-delivery in the ‘whole enchilada’ package by UVA would risk a contempt ruling. Very high stakes to play it straight.

Electronic format is a great asset to ATI, as they can readily search for missing documents such as Climategate emails known to have been delivered to/ sent from UVA.

Similarly, UVA has a lot of work to reclaim all the docs squarely within the exemptions, as well as the ones that have a more squirrelly fit…

Lawyer jokes;
from the (arguably successful) ATI petition to the court;

” Petitioners’ reject UVa’s effort to rescue a defense from the dicta of an opinion letter that
they otherwise eschew… ”

In #78, ATI shows pattern of FOI avoidance;

“78. Because the Respondent knew in October of 2010 that it had the subject documents, where they were stored, and what it would cost to supply them, but improperly took an additional seven days to make its initial refusal to supply the documents on the basis of cost; and, because the Respondent failed to supply the requested documents within five days of payment of a deposit against anticipated fees, failed to reach an agreement with the Petitioners concerning a schedule for production of the records requested, and failed to petition an appropriate court for additional time to respond to a request for an extraordinary volume of records; and pursuant to Va. Code § 2.2-3704(B) & (E),

Petitioners ask the Court to: (i) find the Respondent in violation
of the Virginia Freedom of Information Act and (ii) order the Respondent to provide the requested documents on a timely schedule not to exceed 15 working days.

79. Because Petitioners requested the Respondents to supply the documents in electronic form, and the Act requires such an accommodation upon request, Petitioners ask the Court to order all documents be supplied in a commonly useable electronic form that will permit standard content searching within the documents, e.g. in a rich text format.

80. Because Respondent improperly includes exclusion review within the definition of “supplying” documents, Petitions ask the Court to issue a permanent injunction barring the
Respondent from demanding payment for exclusion review; and, to either apply overpayments used by UVa to cover exclusion review to future allowed costs, or return payments not needed to
cover allowed costs.

81. Because Petitioners will challenge exclusions of responsive documents made by the Respondent, Petitioners ask the Court to enter a protective order that will allow Plaintiffs to reduce the number of documents placed before the Court for in camera review, and otherwise order the Respondent to engage in a process that will allow Petitioners to view all excluded
documents under the protective order; or in the alternative, Petitioners ask the Court to order Respondents to prepare an index identifying each excluded document by author, recipient, date, subject and document-specific facts justifying the exclusion used by the Respondents, an index subject to seal by the court, if appropriate.

82. Because the Respondent violated the Virginia Freedom of Information Act, Petitioners ask the court to order payment of the Petitioners’ reasonable costs associated with the instant
matter in the amount of $6,362.20.

83. Finally, in light of the highly public pressure being placed on the Respondents, Petitioners ask the Court to order such necessary and proper injunctive relief or other injunctive
relief as this Court deems just and proper, including production of the criteria and associated guidance provided to the staff who conducted exclusion review, to include rendering of verbal guidance to a writing for deliver to Petitioners.

WHEREFORE, in light of the above, Petitioners request the relief sought herein.”

There are so many FOI and so many refusals, and fudges, can anyone actually remember what the request was for? I understand the fraud claims are on paper about criminal grant fraud not bad science. Mann only needs to show reasonable doubt that any errors were incompetance or a difference of opinion between experts.

So what are we hoping to find? A nice email which says, “we need to truncate our data because early and later periods kill our case”. “lean on this student not to publish this update. Lets all delete emails before the FOI gets here.

If it is just source code and data for the hocky stick. How many times can you kill that horse.

Hehe, sorry, I mean that the letters seen so far corroborate the view that there was collusion / other unsavoury practices to stifle proper skepticism / uncertainty and to present a neat story at the expense of rigour.

That’s what I’m inferring from the sentence I was asking for clarification on.

Some of the history and details of fact proffered in court that
led to the UVa/ATI consent decree can review in the “Verified
Petition for Mandamus and Injunctive Relief” filed May 15, 2011, by
the American Tradition Institute with the Prince William County
Circuit Court.

True , but the interesting thing is that although we are told that AGW is the most important thing ever and there is no time to waste etc to avoid climate doom that so much effort to put into not releasing information which ‘can only support AGW’ , amazing when you think about it . Unless of course the impossible is the case and the information does not support ‘climate doom ‘ as sold , in which case you can understand the approach.

A reasonable empirical case can be made that the climate sensitivity to increasing GHG forcing is about 0.09 C/W-m^-2. That’s about 12% of the official IPCC number, and implies a warming of about 0.8 C by 2100 given a quadrupling of atmospheric CO2 from the 1900 value.

On the further hand, it appears that the response curve to GHG forcing is damped. This implies a progressively negative feedback to increased forcing. If that continues true, the year 2100 quadrupling will see only about 0.4 C of warming.

Sir Paul Nurse says climate scientists are being targeted by campaigns of requests designed to slow down their research.

Freedom of information laws are being misused to harass scientists and should be re-examined by the government, according to the president of the Royal Society.

Nobel laureate Sir Paul Nurse told the Guardian that some climate scientists were being targeted by organised campaigns of requests for data and other research materials, aimed at intimidating them and slowing down research. He said the behaviour was turning freedom of information laws into a way to intimidate some scientists.

Nurse’s comments follow the launch of a major Royal Society study into how scientists’ work can be made more open and better used to inform policy in society”

Barry, I notice comments are not allowed but Bob Ward gets his say? What is it with the conspiracy theory? “organised campaigns of requests for data and other research materials, aimed at intimidating them and slowing down research.”

I have never heard about anybody wanting to “slow down research”, but I have heard a lot of people genuinely trying to comprehend what has been done so far. Surely these requests can only slow down ongoing research if the details had not been properly archived in the first place?

Nurse is nobody’s fool; therefore I find the motivation for this article puzzling.

Green Sand , the relationship between CIF and Bob ‘fast fingers’ Ward is a interesting one , they use him as one of climate science ‘experts’ despite the fact he has no qualifications in the area and they are very touchy about people who mention who it is that actual pays Bob’s wage and what his role really is, PR/ attack dog. Its seems to be the go to guy they use when ever they want a bit of spin on the AGW front , which might be OK as has he is a PR/attack dog/ spinner guy , But there seems to be something else going on with Bob as he is no way is employed by the Guardian, but he seems to have his ‘fast fingers’ very deeply in the Guardian environmental coverage pie.

The best bit has to be this form Bob fast fingers Ward ” the intention of many of those making freedom of information requests was to trawl through scientists’ work with the intention of trying to find problems and errors. ” now where have we heard that idea before , Jones why should I give it you , your only looking for faults in it . Indeed climate science as still not got its ahead around the idea that is critical review which is important , not pal review .
Its not a surprise to find this article has not been opened to comments, as CIF has had its arse handing to so many times over FOI issues at CRU its no longer wants to hear others views.
But just for the record , Phil Jones planned to avoid FOI request before he even got a single one, so no ‘hassle’ at all was required before CRU decided the FOI was something it did not like.

The solution is so simple and obvious. Publish data. Publish methods. Publish computer code. End of story.

But instead we get a story where a knighted Nobel laureate actually whines in public for three paragraphs about how his friends are being harassed for providing material that already belongs to the public domain.

ATI was started in 2009. They have a website which describes their goals. I support Steve McIntyre’s data analysis. But there are no scientists in ATI that I can tell, so what is the reason they want this information? As interesting as the “climategate” emails were, I do not feel that it should be standard practice to go through everyone’s email records. I think that Steve’s making headway in access to data and this benefits all of us.

I worry that this is just another delaying tactic. Had this gone to trial, UVa would most certainly have lost and their prospects for appeal would be slim. The court would order the production of the requested materials and there would be no recourse. By entering into a consent decree, UVa has opened a path for Mann to challenge the agreement (a path that would not have been available to Mann had UVa lost in open court). Mann will likely file this challenge at he last possible moment. A court would need to hear the challenge. UVa would then file a motion in the Cuccinelli CID appeal, arguing that the CID case is premature and should be stayed pending resolution of the Mann challenge. The only saving grace is that Cuccinelli will likely argue that his CID is a law enforcement action and therefore should take precedent over the FOIA case.

” When the first request was made for Mann’s emails in December 2009, the University performed a thorough search of central email archives and concluded that Mann’s emails were no longer stored in them. This was not a surprise as normal procedure is that a faculty member’s email is purged when he or she leaves the University. In the course of researching records potentially responsive to the CIDs, which were broader than previous records requests, the University discovered a previously unknown surplus computer stored in the environmental sciences department that retained electronic documents relating to Mann.
To date, no emails of Mann or Michaels have been provided under the Freedom of Information Act.
The University has acknowledged all along that faculty emails are, with certain exemptions, public records under the Virginia Freedom of Information Act. U.Va.’s challenge to the CIDs in court is on grounds that are not related to access to documents under FOIA.”

previously unknown surplus computer? that makes no sense. Chris Horner should do a little pushing on the details of that machine. Asset tags, etc. how does a surplus computer end up with mail on it? that’s way too weird to be true

Normal procedure is to keep backups for 5 years (per state Statute), so the location of the actual server is moot. If they had not come up with the mystery server, they would be undergoing a lot of grilling from both JLARC and the APA as to why they are not following established procedures and laws.

Yes, their “normal procedure” is in violation of the law. Now if their “normal procedure” is to remove it from production (probably what they meant but did not say), there is no law on that, and that is a good procedure.

actually retention on back-up media in the state of virginia per the Virginia Public Records Act and the records retention and disposition schedules on the LIbrary of Virginia website is to destroy back-ups when they are superceded or obsolete. Read page 3 – System Maintenacne Records; Back-ups – http://www.lva.virginia.gov/agencies/records/sched_state/GS-113.pdf

That is for Archival purposes, but is not pertinent to the FOIA that requires 5 years retention. You do not have to keep a document for 5 years if you have updated it (thus the LVA guidelines), but you cannot destroy the document just because the author leaves employment.

Re: steven mosher (May 26 11:13), doesn’t sound that weird to me. The obvious explanation is that it is his old work laptop and that he synced his email to it. When he upgrades to a new laptop the old one gets squirreled away, with the intention that it can be lent to visitors etc. Old accounts don’t get deleted, through a “just in case” mentality, and the laptop just sits in a drawer somewhere, never being used since (shock, horror) all visitors bring their own. It gets stumbled on during one of the periodic office reallocations which are the only known way of making academics tidy up their desks.

I can think of an old laptop very like this which almost certainly contains a copy of my emails frozen in about 2009.

Your explanation sounds grossly incompetent as the APA and JLARC also require computers to be scrubbed if they are going to leave the system for any reason (including lending to visitors). And scrubbed is not just deleting old files, but using a utility to make retrieval difficult (if the computer is being salvaged, the requirements are much rougher).

You missed one of the most interesting bits of information provided by the
University of Virginia on their Freedom of Information page. On May 25th,
2011, the University posted the following at the TOP of the article you cited:

Climate Change and the Freedom of Information Act at U.Va.

Update

University followed General Assembly process in response to FOI for review of faculty member’s 34,000 e-mails.

Wow !! 34,000 e-mails for just Mike Mann stuck in a surplus computer… and no
duplication of any of them on any other computer at the University of Virginia !

Mike Mann must not have e-mailed or gotten a response from a single member
of his department that hasn’t left the University for greener pastures. It
also means no one else in his department was e-mail an item with Mike Mann as a
cc’d (cc)or blind cc’d (bcc)recipient.

Otherwise, there would have still been a few Mike Mann authored or cc’d e-mails
kicking around the other servers or other storage medium devices still at UVa.

It sounds to me like both ATI and the Virginia Attorney General are
being blindside by a lack of expertise in how some of those old Unix systems
allowed one author to create a standard “alias” list of e-mail addresses for
various, select small, medium and large groups.

God, I miss that Unix system we had at Businesss Affairs at Kent State in the
80’s and 90’s.

R.S. Brown makes a very important point. UVa’s original response was that they could not find even a single copy of an email anywhere in the university system that was covered by the FOIA request. This is, on its face, an incredible claim. Email, by its very nature, leaves artifacts in multiple places. It defies all reason that copies of Mann’s emails could not be found in various archive files of recipients or even on the hard drives of recipient’s machines. Its very likely that UVa’s response was simply untrue.

“””””The Respondent [UVA] shall complete its supply of requested documents no later than 90 days after the date of this order and will supply them in electronic form.”””””

Also, that Consent Order said,

“””“D. 3. The Petitioners shall have 90 days after receipt of the Exempt Information to review it, negotiate with the Respondents, and, if they choose, file a petition with the Court for in camera review for determination as to whether the Respondent properly designated the records as Exempt Information as defined herein.””””

The timeline is that first UVA has 90 days give all info to ATI. Then when each piece of the UVA supplied info is given to ATI a different 90 day clock starts for ATI to review that piece of info and to negotiate with UVA about it and for petitions to the court to be filed if negotiation isn’t achieved between UVA and ATI.

OK, but I can foresee both ATI and UVA negotiation on each piece of info taking longer than the allowed 90 days. So I think both parties together will eventually jointly apply to the court for extension of the negotiation period.

”The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:”

…

”4. Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions’ financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.” (I’ve added the emphasis)

”The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:”

There are 23 specified ways to have material or information considered for FOI
request exclusion as “proprietary” in Virginia.

§ 2.2-3705.7. Exclusions to application of chapter; records of specific public bodies and certain other limited exemptions

There are 29 ways to have material or information considered for FOI request
exclusion as records of a public body.

One exclusion here might be an awkward but serviceable fit with the Mann material held by the University of Virginia:

“10. Records containing information on the site specific location of rare, threatened, endangered or otherwise imperiled plant and animal species, natural communities, caves, and significant historic and archaeological sites if, in the opinion of the public body that has the responsibility for such information, disclosure of the information would jeopardize the continued existence or the integrity of the resource. This exemption shall not apply to requests from the owner of the land upon which the resource is located.”

What amazing balderdash and contortions of avoidance you folks engage in. . . all to rationalize your blind-eye to the Earth Observation information coming in from every direction. You have pretty near zero science on your side, and what science you do have is bickering about fine details that do nothing to change the overall situation society is facing.

“Do nothing, do nothing” the clarion call goes, shame on you all and you’re ruthless little hearts.

What are personal emails and working drafts going to change about the physical facts being observed?